Safe Harbour Provisions and Copyright Laws: A Fun Day In Court

The Digital Millennium Copyright Act (DMCA) has within it something called “safe harbour” provisions, intended to protect internet providers from any legal threats should users post material online without properly security copyright permissions.

But here’s the thing about both the DMCA and safe harbour provisions: for legal nerds and attorneys, they’re gifts that keep on giving, thanks to the insane chunks of gray area included throughout the legal language. For musicians, this is a blessing and a curse—what one day could be considered protected and safe could be copyright infringement the next.

And it’s at the intersection of safe harbour provisions and copyright where we find ourselves today, as Capitol Records is in the latest stage of a longstanding legal battle with Vimeo over “lip dub” videos.

In the videos, posted years ago in some cases, people lip sync to a given song while the original one plays in the background. Capitol Records got upset about this, saying it violated the copyright holdings of its artists. Vimeo, on the other hand, claimed it couldn’t be held directly responsible for the posts and that the site was protected under the DMCA’s safe harbour provisions.

“The heart of this issue now is whether safe harbour protection can be used by ISPs to avoid liability for infringements of pre-1972 sound recordings. Those works are protected by state law, so record labels have argued that the immunity afforded under DMCA, which is federal law, doesn’t apply,” The Hollywood Reporter explains.

If the songs were written before 1972, they’re subjected to different laws and protections than anything that came after. This is a whole separate legal situation that’s been under discussion for a while—how, and whether, to bring all songs under a single, simple, easier-to-follow regulation and what that might mean for artists and royalties—but in this particular court case might be on its way to a federal court.

The US Court of Appeals for the Second Circuit, in Manhattan, sided with Vimeo and the ISPs in July, but Capitol Records is asking the court to reconsider. This court in particular finds itself in the middle of a lot of music-based lawsuits as it has specifically and expressly been given jurisdiction over music and copyright-related laws.

Carter Phillips, an attorney for the record label, has filed a 43-page petition asking the court to reconsider its earlier ruling, calling the decision an error and points to Section 301(c) of the Copyright Act as “explicitly protect(ing) state law remedies for infringement of pre-1972 sound recordings until February 2067,” The Hollywood Reporter continues.

“The question presented is whether the Second Circuit erred in holding, contrary to the considered view of the United States Copyright Office and in conflict with New York state appellate courts, that when Congress enacted the Digital Millennium Copyright Act and added section 512 to the Copyright Act, it implicitly limited and preempted the very state-law rights and remedies that section 301(c) says ‘shall not be annulled or limited,’” according to the filing. He goes on to suggest this particular question should be handed not at a federal appeals court but the Supreme Court to settle the matter of pre-1972 copyright protections once and for all.

What’s in it for Capitol to call for such a dramatic move? “Capitol estimates that theft of music costs the industry $2.7 billion each year and the Second Circuit’s decision diminishes owner’s rights,” The Hollywood Reporter says.

In its decision earlier this year, the appellate court said Capitol’s requested interpretation of the law “would defeat the very purpose Congress sought to achieve,” MediaPost.com reports.

“Service providers would be compelled either to incur heavy costs of monitoring every posting to be sure it did not contain infringing pre-1972 recordings, or incurring potentially crushing liabilities under state copyright laws,” the court said at the time.

Vimeo and other digital rights advocacy groups made similar arguments in pleading their case. The safe harbour provisions within the DMCA were designed specifically to “allow users to post material dynamically. If the safe harbours don’t apply across the board, companies would have to vet all clips in advance, to make sure that they don’t include pre-1972 recordings,” MediaPost says.

Thanks to another internet-related case, regarding Prince’s “Let’s Go Crazy” and a less-than-30-second video of a toddler dancing around, copyright holders must first consider whether the video in question set out to violate copyright protections before issuing a takedown notice, also according to the DMCA, Lexology points out. Now the mom at the center of the “dancing baby” case has also suggested her lawsuit be heard by the Supreme Court, asking the highest court in the US to “use an objectively reasonable standard for considering fair use as opposed to the subjective standard set forth by the Ninth Circuit” in California.

The DMCA: the law borne of the internet age that’s been called into question and scrutinized as often as use of the internet itself.